Citation Nr: 0727567
Decision Date: 08/31/07 Archive Date: 09/11/07
DOCKET NO. 03-36 372 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to Dependency and Indemnity Compensation (DIC)
benefits under the provisions of 38 U.S.C.A. § 1318.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and her daughter
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from April 1943 to
September 1945. He died on October [redacted], 2001. The appellant
is his surviving spouse.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a February 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
In June 2005, the appellant and her daughter testified before
the undersigned at a hearing held at the St. Petersburg RO.
In August 2005, and again in May 2006, the Board remanded
this matter for additional development. The appeal is again
remanded to the RO via the Appeals Management Center in
Washington, DC.
The Board's May 2006 decision also denied service connection
for the cause of the veteran's death. The appellant did not
appeal that denial to the United States Court of Appeals for
Veterans Claims. In 2007, statements and evidence were
submitted on the appellant's behalf, continuing to argue that
service connection was warranted for the cause of death.
These statements should be construed as a claim to reopen,
and this matter is REFERRED to the RO for consideration.
REMAND
As noted in the Board's prior remand, the appellant, in
November 2001, submitted a claim seeking accrued benefits
based upon the claims the veteran had pending at the time of
his death. Specifically, at the time of his death, the
veteran was seeking earlier effective dates prior to February
9, 2000, for the award of service connection (with 50 percent
rating) for post-traumatic stress disorder (PTSD) and for the
award of a total disability rating based upon individual
unemployability (TDIU). Unfortunately, the RO has not yet
had the opportunity to address the appellant's accrued
benefits claims in this matter.
The appellant's accrued benefits claims are inextricably
intertwined with the claim currently on appeal. Thus, the
accrued benefit issues in this case must be decided in the
first instance by the RO, before the Board reaches a final
determination on the issue of entitlement to DIC benefits
under the provisions of 38 U.S.C.A. § 1318.
See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two
issues are inextricably intertwined when they are so closely
tied together that a final Board decision cannot be rendered
unless both are adjudicated).
Adjudication of the DIC claim pursuant to 38 U.S.C.A. § 1318,
therefore, will be held in abeyance pending resolution of the
appellant's claims for accrued benefits.
Accordingly, the case is remanded for the following actions:
1. The RO must adjudicate the following
issues:
(1) entitlement to an effective date
earlier than February 9, 2000, for the
award of service connection for PTSD, for
purposes of accrued benefits; and (2)
entitlement to an effective date earlier
than February 9, 2000, for the award of a
TDIU rating, for purposes of accrued
benefits. As noted in the prior remand,
if the appellant is not satisfied with
the RO's disposition of either of these
claims, she must file a timely notice of
disagreement, and, following a statement
of the case, a timely and adequate
substantive appeal if she wants the Board
to have jurisdiction over the pending
accrued benefits claims.
2. After completing any additional
necessary development, the RO must then
readjudicate the issue on appeal. If the
disposition remains unfavorable, the RO
must furnish the appellant a supplemental
statement of the case and afford the
applicable opportunity to respond.
Thereafter, the case must be returned to
the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
MICHELLE L. KANE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).